Appeals court reverses ruling in dispute over length of footlong Subway sandwich

The U.S. 7th Circuit Court of Appeals reversed a Milwaukee federal judge’s approval of a settlement in the infamous case about whether Subway’s “foot-long” sandwiches were always 12 inches long.

MILWAUKEE — A class-action lawsuit that almost extracted $520,000 out of Subway over the length of its sandwiches just derailed at a federal appeals court.

The U.S. 7th Circuit Court of Appeals reversed a Milwaukee federal judge’s approval of a settlement in the infamous case about whether Subway’s “foot-long” sandwiches were always 12 inches long.

Judge Diane Sykes, writing for a three-judge panel, concluded: “Because the settlement yields fees for class counsel and ‘zero benefits for the class,’ the class should not have been certified and the settlement should not have been approved.”

After an Australian teenager took a photo of his Subway sandwich coming up short next to a ruler in 2013 and posted it online, people began to sue over the length of their subs. Several were consolidated into a single class-action case that was assigned to U.S. District Judge Lynn Adelman in Milwaukee.

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“In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. They did not,” Sykes wrote.

She noted that early discovery in the case showed Subway already had fairly strict standards about how much dough was in unbaked loaves, and that the minor variations in length were unpreventable, given the nature of baking. Plus, she wrote, no customer really gets less food than they expect, since they watch their subs get made in front of them and can ask for more toppings.

Nonetheless, a settlement plan announced in 2015 would have paid the 10 plaintiff law firms involved a total of $525,000 but given most class members — the millions of people who purchased Subway subs since 2003 — only some promised new procedures Subway said would further assure that their rolls measured a full 12 inches.

The injunctive nature of the settlement was because there really were no damages to any customer. Seeking the other relief from Subway was a way for the lawyers to preserve fees. Some folks objected to the proposed deal.

Theodore Frank, “a class member and professional objector to hollow class-action settlements,” in Sykes’ words, tried to block the planned deal but Adelman approved it. Besides fees to the lawyers, a few…

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